Pfingstweidstrasse 102, 8005 Zurich, Phone: +41 44 384 41 11
General conditions of contract
for the supply of plant and spare parts
1General
1.1
1.2
1.3
The contract shall be deemed to have been entered into
upon receipt of the supplier’s written acknowledgement
stating acceptance of the order. Tenders which do not
stipulate an acceptance period shall not be binding.
These general conditions of supply shall be binding if
declared applicable in the tender or in the order acknowledgement. Any conditions stipulated by the customer which
are in contradiction to these general conditions of supply
shall only be valid if expressly acknowledged by the
supplier in writing.
actual circumstances, or were incomplete, or an amendment has been made to laws, regulations or the principles
of interpretation or application.
5.
Terms of payment
5.1
Payments shall be made by the customer at the supplier’s
domicile according to the agreed terms of payment, without
any deduction for cash discount, expenses, taxes, levies,
fees, duties, and the like.
Unless otherwise agreed, the price shall be paid in the
following instalments:
- one third as advance payment within one month after
receipt of the order acknowledgement by the customer,
All agreements and legally relevant declarations of the
contracting parties must be in writing in order to be valid.
Declarations in text form which are transmitted by or
recorded on electronic media will be equated with written
declarations when specifically so agreed by the parties.
2.
Scope of supplies and services
The supplies and services are exhaustively specified in
the order acknowledgement and in appendices thereto.
3.
Plans and technical documents
3.1
Unless otherwise agreed, brochures and catalogues are
not binding. Data in technical documents are only binding
if they have been expressly stipulated as such.
3.2 Each party retains all rights to plans and technical documents provided to the other. The party receiving such
documents recognises these rights and shall – without
previous written consent of the other party – not make
these documents available to any third party, either in
whole or in part, nor use them for purposes other than
those for which they were handed over.
- one third on expiry of two thirds of the agreed delivery
time,
- the remainder within one month after supplier’s advice
that the supplies are ready for dispatch.
5.2 If the customer does not adhere to the agreed terms of
payment, he shall be liable, without reminder, for interest
with effect from the agreed date on which the payment
was due at a rate depending on the terms prevailing at
the customer’s domicile, but not less than 4 per cent over
the current 3-month CHF-LIBOR target. The right to claim
further damages is reserved.
6.
Reservation of title
The supplier shall remain the owner of all supplies until
he has received the full payments in accordance with the
contract.
Upon entering into the contract, the customer authorises
the supplier to enter or notify the reservation of title in the
required form in public registers or similar records and
to fulfil all corresponding formalities, at the customer’s
expense.
During the period of the reservation of title, the customer
shall, at his own cost, maintain the supplies and insure
them for the benefit of the supplier against theft, breakdown, fire, water and other risks. He shall further take all
measures to ensure that the supplier’s title is in no way
compromised or rescinded.
7.
Delivery time
7.1
The delivery time shall start as soon as the contract is
entered into, all official formalities have been completed,
payments due with the order have been made, any agreed
securities given and the main technical points settled.
The delivery time shall be deemed to be observed if by
that time the supplier has sent a notice to the customer
informing him that the supplies are ready for dispatch.
4.Prices
4.1
Unless otherwise agreed, all prices shall be deemed to
be net ex works, excluding packing, in freely available
Swiss francs without any deductions whatsoever. Any
and all additional charges, such as, but not limited to,
freight charges, insurance premiums, fees for permits
certifications, taxes, fees, levies and customs duties shall
be borne by the customer.
4.2 The supplier reserves the right to adjust the prices in case
the wage rates or the raw material prices vary between
the submission of the tender and the contractually agreed
performance. In such case the adjustment shall be made
according to the attached price adjustment clause.
In addition, an appropriate price adjustment shall apply in
case the delivery time has been subsequently extended
due to any reason stated in Clause 7.2, or any documents
furnished by the customer were not in conformity with the
2016
7.2
The delivery time shall be reasonably extended:
a) if the information required by the supplier for the
performance of the contract is not received in time,
or if the customer subsequently changes it thereby
causing a delay in the delivery of the supplies or
services;
b) if hindrances occur which the supplier cannot prevent
despite exercising the required care, regardless of
whether they affect the supplier, the customer or a
third party. Such hindrances include, but shall not be
limited to, epidemics, mobilisation, war, civil war, acts
of terrorism, riots, political unrest, revolutions, sabotage, serious breakdown in the works, accidents, labour
conflicts, late or deficient delivery by subcontractors
of raw materials, semi-finished or finished products,
the need to scrap important work pieces, actions or
omissions by any authorities or state or supranational
bodies, embargoes, unforeseeable transport problems, fire, explosion, natural catastrophes;
c) if the customer or a third party is behind schedule with
work he has to execute, or with the performance of his
­contractual obligations, in particular if the customer
fails to observe the terms of payment.
7.3
The customer shall be entitled to claim liquidated damages
for delayed delivery insofar as it can be proven that the
delay has been caused through the fault of the supplier
and that the customer has suffered a loss as a result
of such delay. If substitute material can be supplied to
accommodate the customer, the latter is not entitled to
any damages for delay.
Damages for delayed delivery shall not exceed 0.5 per
cent for every full week’s delay and shall in no case
whatsoever altogether exceed 5 per cent of the contract
price of the part of the supplies in delay. No damages at
all shall be due for the first two weeks of delay.
After reaching the maximum liquidated damages for
delayed delivery, the customer shall grant the supplier a
reasonable extension of time in writing. If such an extension is not observed for reasons within the supplier’s control,
the customer shall have the right to reject the delayed
part of the supplies or services. If a partial acceptance
is economically not justified on the part of the customer,
the latter shall be entitled to terminate the contract and
to claim refund of the money already paid against return
of the deliveries supplied.
7.4
Any delay of the supplies or services does not entitle
the customer to any rights and claims other than those
expressly stipulated in this Clause 7. This limitation does,
however, not apply to unlawful intent or gross negligence
on the part of the supplier, but does apply to persons
employed or appointed by the supplier to perform any of
his obligations.
8.
Passing of benefit and risk
8.1
The benefit and the risk of the supplies shall pass to the
customer by the date of their leaving the works at the
latest. 8.2 If dispatch is delayed at the request of the customer or
due to reasons beyond supplier’s control, the risk of the
supplies shall pass to the customer at the time originally
foreseen for their leaving the works. From this moment on,
the supplies shall be stored and insured on the account
and at the risk of the customer.
9.
Inspection and taking-over of the supplies and
services
9.1
As far as being normal practice, the supplier shall inspect
the supplies and services before dispatch. If the customer
requests further testing, this has to be specially agreed
upon and paid for by the customer.
9.2 The customer shall inspect the supplies and services
within a reasonable period of time and shall immediately
notify the supplier in writing of any deficiencies. If the
customer fails to do so, the supplies and services shall
be deemed to have been taken over.
9.3 If the supplier has been notified of deficiencies in accordance with Clause 9.2, he shall remedy them as soon
as possible, and the customer shall give the supplier the
possibility to do so.
9.4 The execution of a taking-over test as well as the stipulation of the conditions related thereto require a special
agreement.
9.5 Deficiencies of any kind in supplies or services shall not
entitle the customer to any rights and claims other than
those expressly stipulated in this Clause 9 and Clause
10 (guarantee, liability for defects).
10.
Guarantee, liability for defects
10.1 The guarantee period is 12 months, or 6 months in case of
a multi-shift system. It starts when the supplies leave the
works or, if the supplier undertakes the installation, upon
completion thereof. If dispatch or installation are delayed
due to reasons beyond supplier’s control, the guarantee
period shall end not later than 18 months after supplier’s
notification that the supplies are ready for dispatch.
For replaced or repaired parts the guarantee period
starts anew and lasts 6 months from the replacement or
completion of the repair, but not longer than the expiry
of a period double the guarantee period stipulated in the
preceding paragraph.
The guarantee expires prematurely if the customer or a
third party undertakes modifications or repairs or if the
customer, in case of a defect, does not immediately take
all appropriate steps to mitigate the damage and give the
supplier the possibility to remedy the defect.
10.2 Upon the written request of the customer, the supplier
may choose to repair or replace as quickly as possible
any parts of the supplies which, before the expiry of the
guarantee period, are proven to be defective due to bad
material, faulty design or poor workmanship. Replaced
parts shall become the supplier’s property if he does not
explicitly renounce this. Under restriction of proportionality,
the supplier shall bear the costs of remedying the defective
parts provided that they do not exceed the customary
costs of transport, personnel, travelling, accommodation,
dismantling and reassembly of the defective parts.
10.3 Express warranties are only those which have been
expressly specified as such in the order acknowledgment
or in the specifications. An express warranty is valid until
the expiry of the guarantee period at the latest.
If the express warranties are not or only partially achieved,
the customer may first of all require the supplier to carry
out the improvements immediately. The customer shall
give the supplier the necessary time and possibility to do
so.
If these improvements fail completely or in part, the
customer may claim a reasonable reduction of price.
If, however, the defects are of such significance that
they cannot be remedied within a reasonable time and
provided that the supplies and services cannot be used
for their specified purpose, or if such use is considerably
impaired, then the customer shall be entitled to refuse
acceptance of the defective part or, if partial acceptance
is economically not justified for him and he communicates
this immediately, to terminate the contract. In this case
the supplier can only be held liable for reimbursing the
sums which have been paid to him for the parts affected
by the termination.
10.4 All deficiencies which cannot be proven to have their origin
in bad material, faulty design or poor workmanship, e.g.
those resulting from normal wear, improper maintenance,
failure to observe the operating instructions, excessive loading, use of any unsuitable material, influence of
chemical or electrolytic action, building or installation
work not undertaken by the supplier, or resulting from
other reasons beyond supplier’s control are excluded
from the supplier’s guarantee and liability for defects.
10.5 With respect to any defective material, design or
­workmanship as well as to any failure to fulfil express
warranties, the customer shall not be entitled to any
rights and claims other than those expressly stipulated
in Clauses 10.1 to 10.4.
11.
Export control
The customer recognises that the supplies may be subject
to Swiss and/or foreign legal provisions and regulations
on export control and are not allowed to be sold, leased
or otherwise transferred or used for a purpose other than
the agreed without an export or re-export permit of the
competent authority. The customer undertakes to comply
with such provisions and regulations. He is aware that
these may change and that they apply to the contract in
the current valid wording.
12.
Exclusion of further liability on the supplier’s part
All cases of breach of contract and the relevant consequences as well as all rights and claims on the part of the
customer, irrespective on what ground they are based,
are exhaustively covered by these general conditions of
supply. In the event that claims of the customer in relation
to or in connection with the contract or the breach thereof
should exist, the total amount of such claims is restricted to the price paid by the customer. In particular, any
claims not expressly mentioned for damages, reduction
of price, termination of or withdrawal from the contract
are excluded. In no case whatsoever shall the customer
be entitled to claim damages other than compensation
for the costs of remedying defects in the supplies. This
in particular refers, but shall not be limited, to loss of
production, loss of use, loss of orders, recall costs, loss of
profit and other direct or indirect or consequential damage.
Liability is also excluded for compensation claims from
third parties against the customer for infringements of
intellectual property rights.
This exclusion of further liability on the supplier’s part
does not apply to unlawful intent or gross negligence
on the part of the supplier, but does apply to persons
employed or appointed by the supplier to perform any of
his obligations. This exclusion of liability does not apply
as far as it is contrary to compulsory law.
13.Installation
If the supplier undertakes installation or supervision of
the installation, the General Conditions of Installation of
Swissmem shall apply.
14.
Jurisdiction and applicable law
14.1 The place of jurisdiction for both the customer and
the supplier shall be at the registered office of the
supplier.
The supplier shall, however, be entitled to sue the customer
at the latter’s registered address.
14.2 The contract shall be governed by Swiss substantive law.
Pfingstweidstrasse 102, 8005 Zurich, Phone: +41 44 384 41 11
Price Adjustment Formula
issued by Swissmem
Lm
Mm
P = P0 (a + b –––– + c ––––)
Lo
Mo
P
= _______Selling price on date of delivery
P 0
= _______Selling price by tender
a
= _______Coefficient of fixed part of costs (e.g. = 0.1)1
b
= _______Coefficient of part varying with wage index (e.g. = 0.6)1
c
= _______Coefficient of part varying with material index (e.g. = 0.3)1
Lo
= _______Wage index 2 of Swissmem, Zurich, on date of tender
Lm = _______Average of all wage indices 2
- from date of order acknowledgement to completion in accordance with contract*
or
- during period of manufacture, i.e. from ____________ to ____________*
Mo = _______Mean of price indices3 of principal material in category «metals and metal products» required for
manufacture, related to their proportion of value of supplies on date of tender
Mm = _______Average of mean values of all price indices3 of principal materials in category «metals and metal products»
required for manufacture, related to their proportion of value of supplies at time of delivery
- from date of order acknowledgement to completion in accordance with contract* or
- from date of order acknowledgement to date by which supplier had obtained most of these materials,
i.e. from ____________*
1
a + b + c must always total 1.
2
Since the wage index is only issued by Swissmem quarterly, the index for the past quarter shall be inserted in each case.
3
Fractions of the official producer price index calculated and published monthly. (If the year serving as a basis for de-termination of the index is changed by the authority concerned, the supplier is entitled to re-calculate the changes in prices in accordance with the new index values.)
* Delete where inapplicable.